Karin Klein v. Tap Pharmaceutical Products, Inc.; Abbott Laboratories

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Kevin Thomas Duffy, U.S. District Judge for the Southern***
District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARIN KLEIN,
Plaintiff - Appellant,
v.
TAP PHARMACEUTICAL PRODUCTS,
INC.; ABBOTT LABORATORIES,
Defendants - Appellees.
No. 11-17250
D.C. No. 2:08-cv-00681-RLH-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted May 14, 2013**
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.***
FILED
MAY 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

Defendant-Appellee Takeda Chemical Industries, Ltd. has been removed1
from the caption because it was never served, did not make an appearance, and is
not a party to this action.
2
Karin Klein claimed that TAP Pharmaceuticals and Abbott Laboratories1
failed to warn her adequately of the severe side effects she experienced after taking
Lupron Depot 3.75 mg. The case was tried to a jury, and Klein lost. She now
argues that the district court abused its discretion in several evidentiary and
discovery rulings and that the district court was unfairly biased. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Klein challenges the district court’s exclusion of several Lupron labels,
adverse event reports, scientific articles, and supplemental expert reports. The
district court did not abuse its discretion in excluding the challenged Lupron labels
because they all contained information regarding the side effects of different
formulations of Lupron, rendering them insufficiently relevant, unduly prejudicial,
and likely to confuse the jury. See Fed. R. Evid. 403. Similarly, the district court
did not err in excluding the adverse event reports. They were hearsay reports of
uncertain reliability, lacking information relevant to causation. We also affirm the
district court’s rulings excluding the scientific articles on hearsay grounds because
Klein failed to establish that any exception applied. See Fed. R. Evid. 803. Finally,
the district court appropriately deemed the supplemental expert reports untimely

-- 2 of 3 --

3
because Klein submitted the reports two years after the deadline for expert reports
and within one month of the start of trial. See Fed. R. Civ. P. 26(e) (parties must
supplement materially incomplete or incorrect information in a “timely manner”).
Klein also challenges the district court’s supervision of discovery. The
district court acted within its discretion in granting Klein’s narrowed motion to
compel and requiring Klein to bear the cost of reproducing documents that had
already been produced. The district court’s denial of Klein’s motion to extend
discovery was also reasonable because the motion was filed too close to the
discovery deadline. D. Nev. Local R. 26-4.
Finally, Klein has not even remotely established that the district court
exhibited “such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). Judicial
bias cannot be demonstrated simply by pointing to rulings that disfavored the
complaining party.
AFFIRMED.

-- 3 of 3 --